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Back the Rwanda Bill or risk the sovereignty of Parliament, say KCs

British Prime Minister Rishi Sunak speaks to the media during a press conference at Downing Street in London, Britain, 07 December 2023
The Prime Minister's plans have been endorsed by four senior UK barristers - ANDY RAIN/EPA-EFE/Shutterstock

The emergency Rwanda legislation cannot go any further, four leading barristers have warned.

The four KCs – including Geoffrey Cox, the former attorney general – say that attempts to toughen up the Rwanda Bill risk breaching international law, would force Rwanda to collapse the scheme and could ultimately undermine the sovereignty of Parliament.

Their support, in an online letter published in full below, will be seized on by the Prime Minister as he attempts to head off demands by MPs on the Right of the Conservative Party who want to further limit the right of illegal migrants to mount individual challenges to their deportation to Rwanda.

The Bill bars “systemic” legal challenges that claim Rwanda as a country is unsafe and disapplies the UK’s human rights act, but illegal migrants can still lodge appeals if they can show they individually would be at imminent risk of serious and irreversible harm if deported to Rwanda – and take their case to Strasbourg.

Mr Sunak has claimed that successful individual claims will be “vanishingly” rare and that to go further would jeopardise the entire Rwanda deportation scheme as the African nation has warned it will pull out if the UK breaches international law.

‘It goes as far as it can within the law’

In their letter, the four – including Lord Sandhurst, a former Bar Council chair, Lord Speaight, a former senior Bar Council officer, and Charles Banner, KC – said: “It goes as far as it can within the law to oust legal challenges to removal, and closes down the vast majority of grounds for challenge.”

They warned the legal consequences of further exemptions – or “ousters” – from domestic or international law would be three-fold, including breaching treaty obligations under the Refugee Convention which may put the Rwanda scheme at risk.

They have said that denying illegal migrants any right to appeal would breach Article 13 of the European Convention on Human Rights (ECHR) – the right to a legal remedy – and could bog down the Rwanda Bill in lengthy litigation in the UK and Strasbourg where judges would likely fast-track a legal case against the UK.

The Bill currently allows individual claims that migrants would be at risk of serious and irreversible harm, a threshold which the barristers say will mean very few will be successful, and only on medical or political grounds such as a specific personal threat from Rwanda’s government.

“Are MPs willing to argue that a late-stage pregnant woman should be unable to challenge her removal to Rwanda, or that a patient with a rare cancer that cannot be treated in Rwanda should have no ability to present their medical records?” they asked.

“These may sound like extreme cases, but that is precisely because the Bill as currently drafted would only allow claims to succeed in extreme situations like these.”

A leading Tory rebel said: “They have misunderstood the nature of the individual claims - anybody with a claimed mental health condition can block their removal. First as to whether they are fit to fly and then with the court under the test of whether they face serious and irreversible harm, which is now a much lower threshold because of the Supreme Court defeat.”

It is understood senior lawyers who have advised the Government are concerned the Home Office may not be able to process asylum cases quickly and efficiently enough to avoid delays clogging up the courts and hampering deportations.

The KCs appeared to acknowledge the concerns but said: “Ongoing recruitment of additional immigration judges, alongside tribunal rules enforcing procedural rigour, can facilitate the swift determination of such claims.”

They warned the courts could even challenge the assumption in the Bill that Parliament was sovereign through denying asylum seekers any right to appeal. “If the Supreme Court were to quash or disapply an Act of Parliament on domestic constitutional grounds for the first time, it will be impossible to put the constitutional genie back in the bottle,” the KCs said.


Those who argue for more must confront the legal consequences

The Government’s Safety of Rwanda Bill is undoubtedly the most robust piece of immigration legislation Parliament has seen. It goes as far as it can within the law to oust legal challenges to removal, and closes down the vast majority of grounds for challenge. Those who argue for further ousters must confront the legal consequences of doing so, of which there are three.

First, the Government would have no respectable legal argument for asserting that the Bill accords with the UK’s treaty obligations under the Refugee Convention. The Rwandan government has made clear it sees compliance with international law as paramount, not least because it wishes to replicate its UK deal with other countries.

Secondly, it would place the UK in clear contravention of Article 13 of the ECHR (the right to an effective remedy) for those with a genuine claim that, even if Rwanda is generally safe, they face serious and irreversible harm due to their own specific circumstances (e.g. medical reasons mean that the journey back would be a threat to their life; or they face a specific personal threat from the Rwanda government).

The threshold for such claims under the Bill is very high and we expect there will be very few that will be successful. Ongoing recruitment of additional immigration judges, alongside tribunal rules enforcing procedural rigour, can facilitate the swift determination of such claims. By contrast, if there is no scope at all for such claims, it is inevitable that the implementation of the Bill will get bogged down in litigation, frustrating its aim of ensuring flights can leave to Rwanda as soon as possible.

Thirdly, the assumption that Parliament is entirely sovereign is only that – an assumption, which the courts have long indicated could be revisited in the event that Parliament did the unthinkable. Legislation which mandated the removal of someone, without the right of appeal, despite clear evidence that this would result in them suffering death or serious and irreversible inhumane treatment, would test that assumption. And if the Supreme Court were to quash or disapply an Act of Parliament on domestic constitutional grounds for the first time, it will be impossible to put the constitutional genie back in the bottle.

The practical implications also bear consideration. Are MPs willing to argue that a late-stage pregnant woman should be unable to challenge her removal to Rwanda, or that a patient with a rare cancer that cannot be treated in Rwanda should have no ability to present their medical records? These may sound like extreme cases, but that is precisely because the Bill as currently drafted would only allow claims to succeed in extreme situations like these. The ousting of all claims would not just have legal consequences, if successful it would have serious human consequences too.

Charles Banner KC, Sir Geoffrey Cox KC MP, Lord Sandhurst (Guy Mansfield KC), Anthony Speaight KC